United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 12, 2000 Decided November 7, 2000
No. 99-1476
Association of Civilian Technicians,
Schenectady Chapter,
Petitioner
v.
Federal Labor Relations Authority,
Respondent
On Petition for Review of a Decision and Order of the
Federal Labor Relations Authority
Daniel M. Schember argued the cause and filed the briefs
for petitioner.
Judith A. Hagley, Attorney, Federal Labor Relations Au-
thority, argued the cause for respondent. With her on the
brief were David M. Smith, Solicitor, and William R. Tobey,
Deputy Solicitor.
Before: Henderson, Randolph, and Garland, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: "The National Guard has the
dual mission of serving both the state in which the Guard unit
is located and the federal government. The Guard stands
ready to preserve peace and order at the command of state
authorities; and to provide combat-ready units and to control
domestic violence at the President's discretion. See Perpich
v. Department of Defense, 496 U.S. 334, 110 S. Ct. 2418, 110
L. Ed. 2d 312 (1990). Because the National Guard is not a
full-time active force, it employs civilian 'technicians' to per-
form administrative, clerical, and technical tasks. These indi-
viduals are generally required to be members of the National
Guard unit in which they are employed (32 U.S.C. s 709(b)),
and must wear their military uniforms while they are work-
ing. See National Guard Bureau Technician Personnel Reg.
No. 300, p 7-6 (1987); New York Council, Ass'n of Civilian
Technicians v. FLRA, 757 F.2d 502, 505-06 (2d. Cir. 1985).
As federal 'employees' (5 U.S.C. s 2105(a); 32 U.S.C.
s 709(d)), the Guard's civilian technicians are entitled to
engage in collective bargaining regarding certain subjects. 5
U.S.C. ss 7102, 7103(a)(2) & (a)(3); American Fed'n of Gov't
Employees, Local 2953 v. FLRA, 730 F.2d 1534 (D.C. Cir.
1984)." United States Dep't of Defense v. FLRA, 982 F.2d
577, 578 (D.C. Cir. 1993).
When called to active duty, as they are with some frequen-
cy, these "dual-status" technicians lose their civilian status
and become members of the armed forces. For obvious
reasons, Congress made it illegal for them or their union to
bargain over the terms and conditions of military service. 10
U.S.C. s 976(c). The issue in this case is whether, in view of
s 976(c), the Federal Labor Relations Authority correctly
refused to order bargaining over the following proposal spon-
sored by the technicians' union:
If the [National Guard Bureau] decides to afford bargain-
ing unit technicians an opportunity to request leave
under 5 U.S.C. s 6323(d), the [National Guard Bureau]
shall inform them of that opportunity solely by written
general announcement, such as a bulletin board posting.
The announcement shall not identify by name, position,
or any other individual identifier, any technician eligible
for the opportunity. The general announcement may
state the number of technicians to whom the opportunity
applies and the knowledge, skills, and abilities techni-
cians must have to be eligible for the opportunity. The
announcement shall state that the opportunity is volun-
tary. The Agency shall not--and the announcement
shall state that the Agency will not--coerce, pressure, or
personally ask any technician to volunteer, and will not
impose any adverse consequence, of any kind, on any
technician, for choosing not to volunteer. If a technician
in response to the general announcement expresses to
the Agency interest in considering the opportunity af-
forded, the Agency thereafter may communicate directly
with the technician concerning that opportunity.
The dual-status technicians here belong to the 109th Tacti-
cal Airlift Wing based in upstate New York. In late 1995, the
109th became responsible for performing airlift operations for
scientific expeditions in Antarctica, missions for which dual-
status technicians may be called into active duty to fly with
the aircraft they maintain. Technicians called to active duty
receive regular military pay plus any available civilian pay.
Or they may volunteer for special pay status, entitling them
to leave with pay from their federal civilian technician jobs for
up to 44 days, but no military pay. See 5 U.S.C. s 6323(d)(1);
10 U.S.C. s 12315(a). The bargaining proposal put forward
by the technicians' union--the Association of Civilian Techni-
cians, Schenectady Chapter--would govern how the National
Guard Bureau informs dual-status technicians of their eligibil-
ity to volunteer for active duty by taking leave from their
civilian posts, a special pay status entitling them only to their
civilian salaries while on leave pursuant to 5 U.S.C. s 6323(d).
Among other things, the proposal requires the Guard Bureau
to inform dual-status technicians of this "opportunity"
through a written posting rather than face-to-face, and to
avoid placing pressure on any technicians to volunteer.
The FLRA found the proposal non-negotiable because it
related to a military assignment and would invite bargaining
over a military decision, in violation of 10 U.S.C. s 976(c).
(The FLRA's alternative statutory basis for its decision is
unnecessary to describe because it has been abandoned. See
Association of Civilian Technicians Texas Lone Star Chapter
100, 55 F.L.R.A. 1226 (2000).) Section 976(c) is a criminal
statute. The FLRA does not administer the provision; its
interpretation thus deserves no special respect. See National
Ass'n of Gov't Employees v. FLRA, 179 F.3d 946, 950 (D.C.
Cir. 1999); see also Illinois Nat'l Guard v. FLRA, 854 F.2d
1396, 1400 (D.C. Cir. 1988); New Jersey Air Nat'l Guard,
177th Fighter Interceptor Group v. FLRA, 677 F.2d 276, 281-
82 n.6 (3d Cir. 1982).
In the language of s 976(c)(2), no one may bargain or
negotiate over the "terms or conditions of service of" "mem-
ber[s] of the armed forces." The phrase "a member of the
armed forces" is defined as:
(A) a member of the armed forces who is serving on
active duty, (B) a member of the National Guard who is
serving on full-time National Guard duty, or (C) a mem-
ber of a Reserve component while performing inactive-
duty training.
10 U.S.C. s 976(c)(2).
The union views its proposal as consistent with s 976(c)
because, in bargaining over the proposal, it would be negotiat-
ing on behalf of civilian technicians, not "members of the
armed forces." But the status of the technicians at the time
of the negotiation cannot matter. No one would claim that
s 976(c) permitted the union to bargain about the type of
uniform the technicians would wear when they were called to
full-time duty (or training, see 32 U.S.C. s 502(a)(1)). What
does matter is the substance of the proposal to be negotiated.